J-S48012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK ANTHONY MARTIN

Appellant No. 1326 WDA 2014

Appeal from the Judgment of Sentence January 29, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0013843-2011

BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 26, 2015

Appellant, Mark Anthony Martin, appeals from the judgment of 

sentence entered January 29, 2014, in the Court of Common Pleas of 

Allegheny County. We affirm. 

The trial court summarized the facts of this matter as follows.

On September 18, 2011, Sonya Smith was watching 

television inside the second floor bedroom of her residence at 

9811 Glendale Road, in the Penn Hills section of Allegheny 

County. Smith and Appellant had been involved in an intimate 

relationship since 2006, but became estranged in May 2011. 

Appellant was familiar with Smith’s residence from visiting and 

staying there throughout their relationship. Smith had locked all 

of the doors to her house before retiring to her bedroom that 

evening. At approximately 3:45 A.M. Smith was awakened by 

voices outside of her bedroom window. Smith called the police 

when she heard prying noises at the kitchen window, which was 

directly below her bedroom. Appellant and John Sloan, who 

were unable to gain entry through the locked doors, broke 

through a [windowpane] in the kitchen door to gain entry to 

Smith’s home through that door. 
J-S48012-15

- 2 -

Shortly thereafter, Sloan, wearing black sweatpants, a 

black sweatshirt, gloves, a Halloween mask and a paintball 

mask, entered Smith’s bedroom holding a 9mm firearm. Sloan 

ordered Smith to lie on her bed facedown and struck Smith in 

the head and arms multiple times with the firearm. Appellant, 

who was wearing a light colored t-shirt, grey sweatpants, and a 

ski mask entered Smith’s bedroom[] shortly after Sloan. 

Appellant and Sloan straddled Smith and struck her multiple 

times in the arms and head; Sloan with the firearm and 

Appellant with a heavy object, most likely a crowbar. 

Following the assault, the two men fled the residence. 

Appellant left first, exiting through the sliding glass door in the 

dining room, a door that because of its “stickiness” could only be 

opened by someone familiar with the premises. At the same 

time Penn Hills police officers arrived on scene in response to 

Smith’s 911 call. Officer Ronald Como, with the assistance of his 

vehicle spotlight, observed Appellant jog across Glendale Road 

away from Smith’s home. Officer Como exited his vehicle to 

approach Appellant, who immediately encountered dogs in a 

neighbor’s yard. Officer Como’s in-vehicle camera captured 

Appellant’s image as he ran across Glendale Road away from 

Smith’s home. 

Officer Richard Pine approached from the opposite 

direction and observed Sloan exiting out the side kitchen door of 

Smith’s residence and running towards the wooded area behind 

Smith’s home. Sloan was able to escape the immediate area but 

was stopped by a Penn Hills officer responding to the scene 

approximately one-half mile away on Frankstown Road. Sloan 

was taken to the Penn Hills police station to be identified 

because he had no identification with him, and presented to the 

officer that he had been out jogging, “blowing off steam,” after a 

domestic argument. He was later charged with the incident once 

Smith was able to be interviewed and identif[ied] him as one of 

the assailants.

At approximately 4:30 A.M. Jerome Landrum was 

awakened by Appellant knocking on his door. Landrum lived at 

441 Hochberg Road, approximately one half mile from Smith’s 

residence. Landrum had known Appellant for over ten years, but 

could not see Appellant’s face when he looked outside so he 

called the police and gave a general description of the individual 

knocking on his door. Unable to gain entry to Landrum’s home, 

Appellant went next door (442 Hochberg Road) and knocked on 
J-S48012-15

- 3 -

the door of the home of Glenn Dillard, who was Landrum’s uncle. 

Appellant knew and called out Dillard’s name and Dillard 

admitted him into his residence. Police responded to the area 

based on Landrum’s call and that his description of the person at 

his door matched that provided by Officer Como. The police did 

not encounter anyone on Hochberg Road at that time. Landrum 

entered Dillard’s home and encountered Appellant, who told him 

that he had gotten into an altercation and needed a ride home. 

Appellant appeared scared and repeatedly looked out the 

windows of Dillard’s home until police vacated the area. 

Landrum refused to provide a ride to Appellant, and after 

approximately fifteen minutes Appellant left Dillard’s home. 

Penn Hills officers responding to Smith’s home entered the 

residence and encountered Smith, severely injured, in her 

bedroom. She notified officers that she immediately had 

recognized Appellant as the second assailant based on his build, 

height, weight, and distinctive smell. Smith was immediately 

transported to the hospital for her injuries; [she] sustained a 

total of nine broken bones in her arms, bruising on her arms and 

back, and a concussion. As a result of the attack Smith spent 

several days in the hospital and one month in a nursing facility 

for rehabilitation. 

On September 23, 2011, en route from the rehabilitation 

facility to attend a funeral, Smith returned home briefly and 

discovered a book[ ]bag belonging to [Appellant] in the dining 

room near the sliding glass door that Appellant had exited. She 

also found a ski mask on a table near the book[ ]bag. Smith 

contacted the police, who collected the ski mask and the book[ 

]bag which contained, among other items, a crowbar. The ski 

mask was submitted to the crime lab, and a DNA mixture 

obtained from a tape lift and suspected saliva stain from the 

mask were compared to the DNA profiles of Appellant and Sloan. 

Appellant and Sloan could not be excluded as contributors to the 

sample taken from the tape lift, and Appellant could not be 

excluded as a contributor to the suspected saliva stain on the ski 

mask. Smith viewed the video from Officer Como’s vehicle and 

identified Appellant based on his build, height, weight, and skin 

color. Kimberly Carson and Beatrice Berry, individuals who had 

lengthy relationships with Appellant were shown a still 

photograph from this video and also identified Appellant. Dillard 

and Landrum were interviewed at a later date and identified 

Martin as the individual who entered Dillard’s residence in the 

early morning hours on September 18, 2011. 
J-S48012-15

- 4 -

Trial Court Opinion, 1/5/15 at 6-10 (citations and footnote omitted). 

Appellant was charged with robbery, burglary, aggravated assault, and 

criminal conspiracy.1 A first jury trial resulted in a mistrial when the jury 

was unable to reach a verdict. The second resulted in the jury convicting 

Appellant of all charges, with the exception of robbery. The trial court 

sentenced Appellant to an aggregate term of 17 to 34 years in prison. The 

trial court denied Appellant’s post sentence motions. This timely appeal 

followed. 

In his first issue, Appellant alleges the ineffective assistance of trial 

counsel. Apart from two limited exceptions not pertinent here, claims of 

ineffective assistance of counsel cannot be raised on direct review. See 

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). Accordingly, 

Appellant cannot raise this claim on direct review. Therefore, we find 

Appellant’s claim of ineffectiveness of trial counsel must await collateral 

review.

Appellant additionally argues that his convictions were against the 

weight of the evidence presented. We note that

[t]he finder of fact is the exclusive judge of the weight of the 

evidence as the fact finder is free to believe all, part, or none of 

the evidence presented and determines the credibility of the 

witnesses.

____________________________________________

1 18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(1), 3502, and 903(c), respectively. 
J-S48012-15

- 5 -

As an appellate court we cannot substitute our judgment 

for that of the finder of fact. Therefore, we will reverse a jury’s 

verdict and grant a new trial only where the verdict is so 

contrary to the evidence as to shock one’s sense of justice. A 

verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when “the figure of Justice totters on her 

pedestal,” or when “the jury’s verdict, at the time of its 

rendition, causes the trial judge to lose his breach, temporarily 

and causes him to almost fall from the bench, then it is truly 

shocking to the judicial conscience.”

Furthermore, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight 

of the evidence. Rather, appellate review is limited to whether 

the trial court palpably abused its discretion in ruling on the 

weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) 

(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 

2007)) (citations omitted).

Appellant’s argument on appeal fixes largely upon the credibility of the 

victim’s identification testimony, as well as nature of the Commonwealth’s 

evidence. In rejecting Appellant’s weight of the evidence claim, the trial 

court observed that

[h]ere, the jury heard testimony from and assessed the 

credibility of several witnesses, as well as Appellant. Additionally, 

the jury viewed and considered video captured by Officer Como’s 

vehicle, as well as hearing Smith’s 911 call and Appellant’s calls 

while incarcerated to Jade Marin, his daughter. Briefly stated, 

the evidence presented established that: (1) Appellant broke 

into Smith’s home with John Sloan and assaulted Smith with a 

crowbar; (2) Smith identified [Appellant] as the second assailant 

to police immediately following the assault; (3) Smith 

consistently identified [Appellant] as the second assailant based 

on her familiarity with his height, weight, and distinctive odor, as 

well as his familiarity with her home from their five-year intimate 
J-S48012-15

- 6 -

relationship; (4) Appellant fled as the police approached, leaving 

his ski mask, book[ ]bag, and crowbar near the sliding glass 

door through which he exited; (5) Appellant crossed paths with 

Officer Como on Glendale Road but was able to escape 

apprehension by running through the neighbor’s yard; (6) 

Appellant hid inside Dillard’s home until the police left the area; 

(7) Smith, Berry, and Cameron identified the individual in the 

video as Appellant; and (8) the ski mask contained a DNA 

mixture from which the Appellant could not be excluded as a 

contributor. 

The jury clearly found the Commonwealth witnesses 

credible, and Appellant not so. Given the nature and quality of 

eyewitness and physical evidence in this matter, the [t]rial 

[c]ourt properly denied the motion for new trial as the verdict 

was not against the weight of the evidence. 

Trial Court Opinion, 1/5/15 at 16-18 (citations omitted). 

Upon review, we find no abuse of discretion by the trial court in 

determining that the verdicts were not against the weight of the evidence. 

Appellant’s challenge amounts largely to a veiled attack on the credibility of 

the victim, Sonya Smith. Appellant assails the victim’s ability to identify her 

attackers during the home invasion, attributes the victim’s consistent 

identification testimony to “a desire to get back at a former lover,” suggests 

that the evidence could have been tampered with, and insists that he was 

home sick on the evening the burglary occurred. 

The defense presented all of these theories to the jury at trial, and the 

jury ultimately found them to be unavailing. The jury clearly acted wellwithin its discretion to credit the testimony of the Commonwealth’s 

witnesses and not Appellant. See Commonwealth v. Bullick, 830 A.2d 

998, 1000 (Pa. Super. 2003) (“[T]he trier of fact while passing upon the 
J-S48012-15

- 7 -

credibility of witnesses and the weight of the evidence produced, is free to 

believe all, part or none of the evidence.”). 

In light of the overwhelming evidence of Appellant’s guilt, not least of 

all the victim’s immediate and unwavering identification of Appellant as her 

assailant, we discern no abuse of the trial court’s discretion in denying 

Appellant’s challenge to the weight of the evidence. Accordingly, his claim is 

without merit. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/26/2015